Brief Fact Summary. A car driven by the Defendant, Felix Rush Westfall (Defendant), was involved in an accident. The owner of and a passenger in the vehicle driven by Defendant was killed in the accident. The Plaintiffs, Marco Smalich, Executor of the Estate of Julia Smalich (Plaintiff), the deceased and other family members brought suit. The trial court determined that recovery could not be allowed because the contributory negligence of the Defendant must be imputed to the owner.
Synopsis of Rule of Law. This Court determines that contributory negligence will not be imputed to the owner-passenger of a car, when the owner-passenger is the plaintiff.
Issue. Should a driver’s negligence be imputed to a passenger, so as to bar the passenger from recovery?
Held. No. Judgment vacated and record remanded.
* Only a master-servant or joint enterprise relationship should justify the imputation of contributory negligence on a car passenger. In the ordinary situation, it is clear that the passenger has no control over the physical acts of the driver. It seems more reasonable to assume that a mutual understanding exists between an owner-passenger and driver that driver will use ordinary care and skill in driving, while remaining subject to the commands of the owner-passenger in regard to things such as destination.
Concurrence. Justice Roberts said I am pleased that the Court partially repudiated the imputed contributory negligence doctrine. However, courts have often failed to discern the difference between imputing negligence when the owner-passenger is the defendant and using it to impute contributory negligence when the owner-passenger is the plaintiff. There is no justification for imputing contributory negligence in the second scenario.
Discussion. The discussion in the opinion refers to the so called “both-ways test”, whereby courts found that if negligence can be imputed, contributory negligence will also be imputed. This test has been under a slow, but steady at.